Feister v. Bosack

497 N.W.2d 522, 198 Mich. App. 19
CourtMichigan Court of Appeals
DecidedJanuary 19, 1993
DocketDocket 134227
StatusPublished
Cited by24 cases

This text of 497 N.W.2d 522 (Feister v. Bosack) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feister v. Bosack, 497 N.W.2d 522, 198 Mich. App. 19 (Mich. Ct. App. 1993).

Opinions

Corrigan, J.

In this action for damages for injuries sustained as a result of a dog bite, plaintiff appeals the grant of summary disposition to defendant Edward Runyon, lessor of residential property to defendant Gordon Bosack, the dog’s owner. We affirm.

Bosack and his wife occupied Runyon’s single-[21]*21family home pursuant to a month-to-month oral lease. When Mrs. Bosack, the initial tenant, first leased the home in 1984, she did not own a dog. The Bosacks acquired their dog in 1987 or 1988. Runyon knew about the dog, although he never expressly permitted the Bosacks to keep it. Just two days before two-year-old Elizabeth Feister was injured, Bosack told Runyon that the dog had "nipped” the Bosacks’ son, causing some superficial damage to his heel. On May 14, 1989, the dog broke its chain and escaped from the Bosacks’ yard. The dog then bit the child while she was on her grandparents’ property, which was located about half a mile from the leased premises.

Plaintiff sued both Bosack and Runyon, alleging strict liability against Bosack under the dog-bite statute, MCL 287.351; MSA 12.544, and common-law negligence against Runyon. In granting Runyon summary disposition, the circuit court reasoned that because Bosack had not owned the dog when he entered the lease, Runyon could not be liable. We agree. A landlord has no duty to protect third parties from injuries inflicted by a tenant’s pet that occur away from the leased premises.

Although couching its decision in terms of "no duty,” the circuit court, in its oral ruling, did not identify the court rule it applied. The written order relied on MCR 2.116(C)(10). Under either MCR 2.116(C)(8) or (0(10), summary disposition was appropriate.

A motion under MCR 2.116(C)(8) (failure to state a claim upon which relief may be granted) tests the legal sufficiency of a claim by the pleadings alone. Michigan Ins Repair Co, Inc v Manufacturers Natl Bank of Detroit, 194 Mich App 668, 673; 487 NW2d 517 (1992). All factual allegations supporting the claim are accepted as true, as well as any reasonable inferences or conclusions that can [22]*22be drawn from the facts. Id. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). In a negligence action, summary disposition pursuant to MCR 2.116(C)(8) is properly granted if it is determined, as a matter of law, that the defendant owed no duty to the plaintiff. Terrell v LBJ Electronics, 188 Mich App 717, 719; 470 NW2d 98 (1991).

A motion for summary disposition under MCR 2.116 (C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Michigan State AFL-CIO v Civil Service Comm, 191 Mich App 535, 546-547; 478 NW2d 722 (1991); Panich v Iron Wood Products Corp, 179 Mich App 136, 139; 445 NW2d 795 (1989).

Statutory liability for dog bites attaches only to owners. See MCL 287.351; MSA 12.544 and MCL 287.288; MSA 12.539. Only one published Michigan case has examined a landlord’s liability for injuries inflicted by a tenant’s dog. In Szkodzinski v Griffin, 171 Mich App 711; 431 NW2d 51 (1988), a child who was bitten by the tenant’s dog on the leased premises sued both the tenant and the landlord. This Court found that the landlord "had no control or possession of either the [leased] premises or the dog.” Id. at 713. The plaintiff urged the Court to adopt a rule of strict liability "where the landlord knew at the time that he leased the premises that the tenant would be keeping a dog on the premises,” but the Court [23]*23declined. Id. "There is no basis for imposing strict liability on a landlord who neither owns, keeps nor controls the dog.” Id. at 714.

Plaintiff relies on language in Szkodzinski that "the only possible way that defendant could be held liable on a common law theory would be if he knew of the dog’s vicious nature.” Id. From this language, plaintiff infers that once a landlord knows about a dog’s dangerous proclivities, the landlord must act to protect all potential victims from the dog. We decline to draw this inference.

Szkodzinski cited Strunk v Zoltanski, 62 NY2d 572; 468 NE2d 13; 479 NYS2d 175 (1984), which held:

The general rule is that, in conventional settings in which premises are rented by a tenant who acquires exclusive possession and control, the landlord is not liable for attacks by animals kept by the tenant on those premises where the landlord had no knowledge of the animal or its dangerous proclivities at the time of the initial letting of the premises. ...
The principle with respect to the liability of a landlord whose tenant comes into possession of the animal after the premises have been leased [is] (that to establish liability it must be shown that the landlord had knowledge of the vicious propensities of the dog and had control of the premises or other capability to remove or conñne the animal). . . . [Id. at 575; emphasis supplied.]

See also McCullough v Bozarth, 232 Neb 714, 724; 442 NW2d 201 (1989) (landlord liable only if he knew of dangerous dog at time of lease); Duhaime v Mills, — Conn Supp —; — A2d —; 1992 WESTLAW 154896 (Conn Super, June 30, 1992) (landlord liable if he knew of dog at time of lease); Virgil v Payne, 725 P2d 1155, 1157 (Colo App, 1986) (landlord’s duty of care is limited to in[24]*24stances in which landlord actually knows of "vicious actions” of animal before renting premises to owner); Clemmons v Fidler, 58 Wash App 32, 37; 791 P2d 257 (1990) (dog is analogous to defect on leased premises; landlord’s liability to third parties is no greater than that to tenant himself).

Moreover, courts have been reluctant to impose liability for off-premises attacks when the dog has escaped from the tenant’s control. See, generally, anno: Landlord’s liability to third person for injury resulting from attack off leased premises by dangerous or vicious animal kept by tenant, 89 ALR4th 374. In Wright v Schum, 105 Nev 611, 613; 781 P2d 1142 (1989), the Nevada Supreme Court held that "the injuries to [the plaintiff] did not occur on the rented premises and . . . were not directly related to a dangerous condition of the premises.” The landlord "had no initial duty to protect [the plaintiff] and others from injuries caused by his tenants’ escaped pit bulldog.” Id. at 618. Nor was the landlord liable for failure to evict a tenant with a dog "known by him to be dangerous.” Id. at 613. See, also, e.g., Gibbons v Chavez, 160 Ariz App 73; 770 P2d 377 (1988) (summary disposition for landlords proper where tenants’ dogs escaped, even though landlords knew tenants kept dogs); Olave v Howard, 547 So 2d 349 (Fla App, 1989) (landlords had no common-law liability when dog escaped); Ward v Young, 504 So 2d 528 (Fla App, 1987) (no liability for off-premises injury); Allen v Enslow, 423 So 2d 616 (Fla App, 1982) (no liability to passerby).

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Bluebook (online)
497 N.W.2d 522, 198 Mich. App. 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feister-v-bosack-michctapp-1993.